Housing Court Decisions November 97
edited by Colleen F. McGuire, Esq.
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New York Law Journal, decisions for the week of November 24-28, 1997 (11 cases)
- Case Caption:
- In re: Krystal Hargrove v. DHCR
- Issues/Legal Principles:
- Landlord's rent overcharge was willful and treble damages
are imposed; the court found landlord's excuse - that he
thought the J-51 benefits had expired - unbelievable.
- Keywords:
- rent overcharges; treble damages; willfulness
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Hon. Lewis Friedman
- Date:
- 11/24/97
- Citation:
- NYLJ, page 26, col 3
- Referred Statutes:
- Rent Stabilization Code Sections 26-516(a) and 26-517(e);
DHCR Operational Bulletin 95-3
- Summary:
- The DHCR found that the landlord's rent overcharge was
not willful and therefore treble damages were not imposed.
The Appellate Division, First Department overturned the DHCR's
decision and directed the DHCR to impose treble damages. The
court noted that in accordance with the Rent Stabilization Law
and Code, an overcharge is presumed willful, and warrants a
treble damages award, unless the owner established by the
preponderance of the evidence that the overcharge was not
willful.
The apartment became subject to rent regulation because the
owner accepted a loan pursuant to New York City's J-51 tax
abatement program. In exchange for the loan, the owner agreed
that the apartments are subject to rent stabilization, and the
tenants benefit from the tax break which the City gave the
landlord.
In support of a finding of nonwillful overcharge, the owner
argued that the overcharge arose due to a mistaken belief that
the J-51 tax benefits had expired, thereby entitling the owner
to remove the apartment from rent regulation. DHCR believed
the owner's explanation and found that the overcharge was not
willful.
The appellate court held that there was no rational basis in
the record to support DHCR's determination. The court noted
that the landlord had made conflicting statements to the DHCR
about its beliefs regarding the J-51, apparently attempting to
change its story to achieve the desired result (i.e., a
finding of nonwillfulness). Although the owner did tender a
refund to the tenant, this did not rebut the presumption of
willfulness, because (1) the owner did not tender the refund
until after it interposed an answer to the complaint and (2)
the owner did not tender a refund for that part of the
overcharge which occurred during the time period which
predated the four-year statute of limitations.
- Case Caption:
- Targee Management, LLC v. Jones
- Issues/Legal Principles:
- RPAPL Section 747-a (the new rent deposit law) is
unconstitutional.
- Keywords:
- Rent Regulatory Reform Act of 1997; stays of eviction
warrants; unconstitutional statute>
- Court:
- Civil Court, Richmond County
- Judge:
- Hon. Philip S. Straniere
- Date:
- November 24, 1997
- Citation:
- NYLJ, page 36, col 1
- Referred Statutes:
- RPAPL Sections 747-a (as amended); 747, 749(3), 753; CPLR
Sections 2104, 2204; NYS Constitution, Art. 1, Section 11
- Summary:
- Effective 10/17/97, the NYS legislature amended RPAPL
Section 747-a to provide that when more than five days have
passed since a judgment has been entered against a tenant, a
court shall not stay an eviction warrant unless the tenant has
either paid the judgment to the landlord in full or deposited
the full amount of the judgment with the clerk of the court.
The court found that RPAPL Section 747-a is unconstitutional.
The landlord and tenant entered into a stipulation of
settlement, which was so-ordered by the court, on 8/6/97. The
tenant made the first two payments required (total amount
$2,660.00) and paid her rent for September and October in a
timely manner. The stipulation provided for three additional
payments of $388.30 on 10/20/97, 11/20/97 and 12/20/97. The
stipulation further provided that if the tenant missed any
payments, the landlord could enter a judgment in the entire
amount of $3,825.00.
When the tenant missed the 10/20/97 payment, the landlord
asked the clerk to issue a warrant of eviction. The tenant
brought an order to show cause seeking a stay of eviction, and
the Court granted her order to show cause, on the condition
that the tenant post $388.30 with the Court. The Court did
not require the tenant to post or pay the entire judgment
amount, as required by the recent amendments to RPAPL Section
747-a, finding that the statute is unconstitutional.
The court wrote a lengthy opinion, expressing many reasons in
support of its finding that the statute is unconstitutional.
Requiring a poor tenant to pay the entire amount of the
judgment, before having his or her order to show cause heard,
denies a poor tenant access to the courts and violates the
equal protection clause of the New York State Constitution.
'Due process includes the right to have a hearing and
establish any defense in a particular situation, free from the
fetters of financial ability to pay.'
Requiring a tenant to pay the entire judgment (which is, in
this case, more money than the tenant owes pursuant to the
payment plan set forth in the stipulation), would constitute
a taking of the tenant's property (i.e., the excess deposit)
without due process of law.
The newly amended RPAPL Section 747-a conflicts with RPAPL
Section 749, which gives the court the discretion to vacate
a warrant prior to its execution for good cause shown. It
also conflicts with CPLR Section 2201, which similarly grants
a court discretion to stay a proceeding upon 'such terms as
may be just.'
In his conclusion, the judge noted that RPAPL Section 747-a
is unconstitutional and 'is not applicable to a judgment
entered after stipulation between the parties when the tenant
has made payments to substantially reduce the amount of the
judgment entered.'
- Notes:
- This case is the first case - but hopefully not the last
case - which finds some aspect of the Rent Regulatory Reform
Act of 1997 unconstitutional. The court's opinion also calls
attention to the fact that stipulations drafted by landlords'
attorneys often include a 'payout' provision and a provision
that if even one payment is not timely made, the landlord may
enter judgment in an amount equal to the entire judgment, as
if the tenant had not made any payments at all. Only an
uninformed tenant would agree to such a harsh provision;
perhaps judges should not so-order stipulations which contain
these abusive and unfair provisions.
- Case Caption:
- Edgecombe Revitalization Corp. v. Newbold
- Issues/Legal Principles:
- Court dismisses motion seeking a determination of
contempt of a court order where tenant does not present proof,
in the form of test results, that a lead paint hazard actually
exists in the apartment.
- Keywords:
- contempt of court
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Eardell J. Rashford
- Date:
- November 25, 1997
- Citation:
- NYLJ, page 25, col 2
- Referred Statutes:
- none cited
- Summary:
- Landlord and tenant entered into a stipulation, which was
so-ordered by the court, requiring landlord to correct any
lead paint hazards in the apartment. Landlord apparently did
no lead abatement work in the apartment after signing the
stipulation. Tenant brought a motion before the Court asking
that the landlord be held in contempt for failure to comply
with the court-ordered stipulation. The court denied the
contempt motion and assessed attorney's fees and costs against
the tenant's attorney. The court found that the contempt
motion was frivolous, because the tenant did not present any
proof, in the form of test results, to prove that a lead paint
hazard exists in the apartment.
- Notes:
- It is best to have the stipulation contain an unequivocal
admission, by the landlord, that a certain condition or
violation actually exists in the apartment, together with a
promise to correct the condition or violation. A promise to
correct 'any condition which may exist' is an empty promise.
It appears that the court may have treated the tenant's
attorney harshly (assessing costs) because there was evidence
that the attorney offered to withdraw the "frivilous" contempt
motion in exchnage for certain rent waivers for the tenant.
tHe court regarded this as somewhat extortionary (although
that word was not used).
- Case Caption:
- Karmely v. Gill
- Issues/Legal Principles:
- Notice of nonrenewal on personal use grounds survives a
motion to dismiss, notwithstanding the fact the landlord's
deposition testimony contradicts some of the facts stated in
the notice of nonrenewal.
- Keywords:
- notice of nonrenewal; personal use eviction proceedings;
motions for summary judgment; motions to dismiss
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Saralee Evans
- Date:
- November 25, 1997
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- CPLR Sections 3211 and 3212
- Summary:
- The landlord served a notice of nonrenewal and a holdover
proceeding alleging that he wanted the apartment for his
personal use. The lower court judge dismissed the holdover
proceeding, on the basis that the predicate notice (i.e., the
notice of nonrenewal) was legally insufficient. The appellate
court found that the notice was legally sufficient,
notwithstanding the fact that the landlord's deposition
testimony may contradict some of the facts stated in the
nonrenewal notice. Questions as to the landlord's good faith
and credibility should be decided after trial and not in a
summary fashion. The appellate court also found that the
court should not have converted a CPLR 3211 motion to a motion
for summary judgment without providing the landlord with
notice.
- Case Caption:
- Mitchell Gardens No. 1 Cooperative Corp. v. Cataldo
- Issues/Legal Principles:
- RPL Section 235-f permits occupancy by an additional
occupant, so long as the tenant of record maintains the
premises as his or her primary residence.
- Keywords:
- permitted occupancies; occupancy restrictions
- Court:
- Appellate Term, Second Department
- Judge:
- lower court judge: Hon. B. Greenbaum
- Date:
- November 25, 1997
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- Rent Stabilization Code Section 2520.11; Real Property
Law Section 235-f
- Summary:
- The cooperative corporation brought a holdover proceeding
against tenant, alleging that the apartment was occupied in
violation of the terms of the proprietary lease, due to
occupancy by Eileen Sheridan, the stepdaughter of the
shareholder, Sheila Sheridan. Sheila Sheridan is the former
wife of Frank Cataldo; she acquired the apartment after her
divorce from Frank Cataldo. Eileen Sheridan is the daughter
of Mr. Sheridan (Sheila's new husband) and thus, Sheila
Sheridan's stepdaughter.
The appellate court held that the lower court should not have
dismissed the holdover petition in response to tenant's
summary judgment motion, because there was an issue of fact as
to whether Eileen Sheridan occupied the premises alone or
together with her step-mother, Sheila Sheridan. If the
apartment is also the primary residence of Sheila Sheridan,
than Eileen Sheridan should be permitted to occupy the
apartment with her, in accordance with the provisions of RPL
Section 235-f, subsections 3 and 4. Subsections 3 and 4
provide that a tenant must reside in the premises, as her
primary residence, in order to permit an occupant (such as a
stepdaughter) to lawfully reside there.
The appellate court found that the court below should have
relied on RPL Section 235-f, rather than on the definition of
'immediate family' set forth in the Rent Stabilization Law and
Code, because cooperatives are not covered by the Rent
Stabilization Law and Code.
- Case Caption:
- GK & J Subraj v. Smith
- Issues/Legal Principles:
- A court has no authority to award rent arrears to a
landlord in response to landlord's holdover petition.
- Keywords:
- chronic nonpayment
- Court:
- Appellate Term, Second Department
- Judge:
- lower court judge: Hon. Grayshaw
- Date:
- November 25, 1997
- Citation:
- NYLJ, page 27, col 6
- Referred Statutes:
- none cited
- Summary:
- The landlord brought a holdover proceeding against tenant
seeking an eviction on the basis that tenants had breached a
substantial obligation of their tenancy by an alleged chronic
nonpayment of rent. The lower court judge dismissed the
petition, and in his decision stated that although the tenant
had withheld rent and been sued for nonpayment many times, the
tenants had legitimate reasons for withholding rent on each
occasion. Although the judge's decision expresses the reasons
why the holdover petition should be denied, the judge's order
actually grants the landlord's holdover petition, awarding a
'holdover' judgment to landlord in the amount of $517.89,
providing that the warrant should be stayed for five days.
The landlord appealed the lower court's decision and the
appellate court held that they would not entertain any appeal,
'because it is our view that the judgment does not accurately
reflect the court's decision, that it is in any event
improper, and that it is incapable of correction by this court
since there has been no appeal by tenants.' The court was
without authority to award rent arrears in response to
landlord's holdover petition. The court noted that if the
tenant had appealed, the court would have reversed the lower
court's judgment and dismissed the petition.
- Case Caption:
- L&F Realty Co. v. Kazama
- Issues/Legal Principles:
- Before obtaining a default judgment and warrant of
eviction, the landlord must present the court with an
affidavit alleging sufficient facts in support of the
conclusion that the defaulting tenant is not in the military
service.
- Keywords:
- default judgments; non-military affidavits
- Court:
- Civil Court, New York County
- Judge:
- Hon. Ling-Cohan
- Date:
- November 26, 1997
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- Federal Soldiers' and Sailors' Civil Relief Act of 1940,
50 USCA Appendix Section 520(1); New York State Military Law
Section 309
- Summary:
- Landlord brought a summary proceeding against tenant and
tenant did not appear in court. Landlord then brought a
motion asking the court to enter a default judgment against
the tenant and issue a warrant of eviction. Federal law
requires landlords to file a non-military affidavit with the
court in order to obtain a default judgment and warrant of
eviction. The purpose of the law is to protect persons
serving in the military and their dependents from having
judgments entered against then without their knowledge.
The non-military affidavit must either (1) set forth facts
showing that the tenant is not in the military service or (2)
submit an affidavit showing that, after an investigation, the
landlord is unable to determine whether the tenant is in the
military service. The investigation must set forth detailed
facts in support of the investigator's opinion that the tenant
is not in the military service.
In this case, the landlord simply presented the court with an
affidavit by the managing agent which states that he went to
the building on five occasions and was unable to locate the
tenant to inquire about his military status, that neither the
superintendent nor the managing agent have ever seen
respondents in military uniform and that they have no reason
to believe respondent is in the military service.
The court refused to grant a default judgment and warrant of
eviction to the landlord upon the strength of this affidavit.
The court found that the affidavit fails to allege that an
investigation was conducted and that the facts stated in the
affidavit were just as consistent with the respondent's being
in the military service as not. The court indicated that it
would entertain another motion from the landlord, after the
landlord conducts an investigation and obtains more facts in
support of the tenant's alleged non-military status.
- Case Caption:
- Matter of Berlet v. NYS - DHCR
- Issues/Legal Principles:
- DHCR's order of high income / high rent deregulation is
found arbitrary and capricious where tenant's failure to file
a timely answwer was not willful and tenant alleges that her
income is below the deregulation threshold.
- Keywords:
- high income / high rent deregulation
- Court:
- Supreme Court, New York County
- Judge:
- Hon. McCooe
- Date:
- November 26, 1997
- Citation:
- NYLJ, page 30, col 3
- Referred Statutes:
- RRRA of 1993; RSL Sections 504.1, 504.2, 504.3; RSC
Section 2527.9(a); CPLR Sections 3211 and 7804
- Summary:
- Tenant was served with a copy of landlord's petition for
high income deregulation and did not file an answer with the
DHCR within 60 days as required by the Rent Stabilization Law
and Code. In accordance with the applicable provisions of the
law and code, the DHCR then issued an order deregulating the
apartment, without investigating whether the tenant's income
falls above or below the deregulation threshold. Tenant then
filed a Petition for Administrative Review ('PAR') with the
DHCR, submitting evidence (her tax returns) showing that her
income was below the threshold and explaining why she did not
respond within the sixty days. She said that she had
completed an answer and forwarded it to her attorneys, but she
was not sure whether the attorneys had ever filed the answer.
She also said that she failed to respond because she was
confused by 'overlapping' notices sent by the DHCR.
Tenant's PAR was denied and she therefore challenged the
DHCR's decision in the Supreme Court, by filing a proceeding
pursuant to Article 78 of the CPLR. The Court rejected the
tenant's argument that the statute was unconstitutional, but
held that the tenant's failure to file a timely answer was not
'willful' and that she alleged that her income was below the
deregulation threshold. The court held that the DHCR has
discretion to open up the default and hear the case on its
merits. Under the circumstances of this case, the DHCR's
decision not to vacate the tenant's default was arbitrary and
capricious. The court excused the tenant's default and
remanded the case to the DHCR for a determination about
whether the tenant's income is below the threshold.
- Case Caption:
- In re: Norman Nick v. DHCR
- Issues/Legal Principles:
- The high rent / high income provisions of the rent
stabilization law and code do not violate due process or equal
protection of the laws, even where an order of deregulation is
issued due to a tenant's default.
- Keywords:
- high income / high rent decontrol
- Court:
- Appellate Division, First Department
- Judge:
- lower court judge: Hon. Salvador Collazo
- Date:
- November 28, 1997
- Citation:
- NYLJ, page 27, col 5
- Referred Statutes:
- CPLR Article 78; RSC Section 504.3
- Summary:
- The owner filed a petition for high income / high rent
deregulation with the DHCR but the tenant failed to file a
timely response. As permitted by the rent stabilization law
and code, the DHCR issued an order deregulating the apartment.
The tenant's PAR was presumably denied. The tenant then
brought an Article 78 proceeding to challenge the Order of
deregulation which was dismissed by the Supreme Court, New
York County. This dismissal was affirmed by the Appellate
Division, First Department.
The Court found that the high income / high rent decontrol law
does not violate due process or equal protection. There is no
denial of due process because tenant was given 'reasonable
notice and reasonable opportunity to be heard.' There is no
denial of equal protection because the Code provision was
'reasonably related to the legislative scheme underlying rent
regulations.' The DHCR was mandated to issue an order of
decontrol when tenant failed to make a timely submission to
the DHCR.
- Notes:
- This case concerned two apartments combined as one
residential unit. The evidence indicated that the tenant's
aggregate monthly rental for the combined units exceeded
$2,000, and apparently their income exceeded $250,000 for the
last two calendar years. Perhaps these two factors explain
why this defaulting tenant was not given the benefit of having
the case remanded based on a failure to answer -- unlike the
defaulting tenant in the above case ( Matter of Berlet v.
NYS - DHCR ) whose income in fact did not exceed $250,000,
and her apartment would not have been exempted but for her
default.
- Case Caption:
- 112 MacDougal Street Realty Association, Inc. v. DHCR
- Issues/Legal Principles:
- Landlord failed to timely challenge the DHCR's finding
of rent overcharge.
- Keywords:
- rent overcharge; Article 78 proceedings; Petition for
Administrative Review; timeliness
- Court:
- Appellate Division, 1st Department
- Judge:
- lower court judge: Hon. Stuart Cohen
- Date:
- November 28, 1997
- Citation:
- NYLJ, page 27, col 4
- Referred Statutes:
- RSL Section 516[d]; RSC Section 2529.2; Article 78 of the
CPLR
- Summary:
- On 1/26/93, a DHCR rent administrator made a finding that
tenant had been overcharged. On May 11, 1993, tenant obtained
a Supreme Court judgment in the amount of the overcharge.
Landlord should have filed a Petition for Administrative
Review ('PAR') with the DHCR, to challenge the DHCR's 1/26/93
Order, within 35 days of the date of the Order, but failed to
do so. Landlord filed a PAR in September 1993, alleging that
he had no knowledge of DHCR's 1/26/93 Order until tenant
attached landlord's bank account to enforce the 5/11/93
judgment. On 2/1/94, the DHCR dismissed the landlord's PAR
because it was not filed in a timely fashion. The DHCR's
decision on a PAR could be challenged in the Supreme Court, by
bringing a proceeding pursuant to Article 78 of the CPLR
within sixty days of the PAR decision. The landlord brought
an Article 78 proceeding to challenge the DHCR's 2/1/94
decision in July 1993, but it was dismissed as untimely.
Landlord then brought a motion to vacate the judgment dated
5/11/93 before the Supreme Court and it was treated as an
Article 78 proceeding and denied on 8/19/96. The Appellate
Division, 1st Department affirmed the lower court's decision
stating that landlord's motion was properly denied because
landlord had failed to exhaust his administrative remedies by
not filing a timely PAR.
- Case Caption:
- Mengoni v. Passy
- Issues/Legal Principles:
- Tenant who replaces fixtures, after complaining to
landlord but receiving no response, cannot be evicted for
altering apartment without landlord's consent.
- Keywords:
- alterations; breach of substantial obligation of tenancy;
holdovers
- Court:
- Appellate Term, 1st Department
- Judge:
- lower court judge: Anne Katz
- Date:
- November 28, 1997
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- 9 NYCRR Section 2204.2[a][1]; RPAPL Section 753(4)
- Summary:
- Tenant has been the rent-controlled tenant since 1976 and
therefore occupies the apartment pursuant to statute and
without a written lease. However, by operation of law, the
provisions of the tenant's first lease are controlling. This
lease provides that tenant shall not make alterations without
landlord's prior written consent.
The tenant complained to landlord that various appliances and
fixtures in the kitchen and bathroom were defective but
landlord ignored these complaints. Tenant went ahead and
replaced the defective appliances and fixtures. When landlord
found out, Landlord brought a holdover proceeding against
tenant, alleging that he had breached a substantial obligation
of his tenancy (i.e., the lease provision which prohibited
tenant from making alterations).
After hearing the tenant's testimony about how he asked the
landlord to make repairs but the landlord refused, the lower
court dismissed the landlord's eviction proceeding. The
appellate term, first department affirmed, explaining that 'it
makes no sense to view a tenant's replacement of broken
appliances with working ones as a breach of a valid tenancy.'
Note that there are three justices which serve on the
Appellate Term, First Department. Two justices affirmed but
one justice dissented and wrote a dissenting opinion.
New York Law Journal, decisions for the week of November 17-21, 1997 (5 cases)
- Case Caption:
- 12 East 86th Street Assoc. v. Goldberg
- Issues/Legal Principles:
- Landlord entitled to high rent deregulation based on proper documentation.
- Keywords:
- high rent deregulation
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Arlene Hahn
- Date:
- November 17, 1997
- Citation:
- NYLJ, page 28, col 5
- Referred Statutes:
- RSC 2522.4(a)(1)
- Summary:
- The prior stabilized tenant vacated the unit and landlord undertook renovations in the
apartment which, together with applicable vacancy and rent guidelines increases, caused the rent
to exceed $2,000, thereby allowing the apartment to be deregulated based on high rent
deregulation laws. The subtenant of the departed tenant acquiesced in the renovations which
were implemented prior to the execution of a lease in his name. The lower court granted the
landlord summary judgment and the appellate court affirmed, holding that the landlord presented
all its proof to justify the increases and thereby deregulate the apartment.
- Notes:
- The case does not state whether it was a holdover or non-payment proceeding. If it was
a holdover, the new tenant (i.e., prior subtenant) probably refused to sign the lease after it was
presented to him, no doubt because it would not have been a rent stabilized lease due to the
rental exceeding $2,000.00. If it was a non-payment proceeding, the tenant signed the lease,
but probably challenged the excessive rental amount. In any event, this case is a lesson for
subtenants who are offered leases before a rental is set. This subtenant probably bargained for
a lease, but didn't realize that the landlord would be able to push the rent so high as to de-
stabilize the apartment.
- Case Caption:
- 3300 Company v. Rodde
- Issues/Legal Principles:
- Rent control tenant not entitled to jury trial.
- Keywords:
- jury clause; rent control
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Ruben Martino
- Date:
- November 17, 1997
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- CPLR 4544
- Summary:
- Tenant moved into the apartment in 1968 pursuant to a two-year lease and continued in
occupancy thereafter as a statutory rent control tenant. The lease contained an enforceable jury
waiver provision which projected into the statutory tenancy. The lower court declined to give
effect to the waiver in this holdover proceeding due to CPLR 4544's prohibition against
enforcement of small print clauses in residential leases. But the appellate court noted that the
statute also provides that the small print provision shall not apply to agreements or contracts
entered into after the effective date of the statute, which was July 1, 1976. Since the lease
predated the statute's effective date, the tenant was not permitted to rely on the statute, and
therefore the jury waiver clause remained effective. The appellate court reversed the lower court
and ruled that the tenant was not entitled to a jury.
- Case Caption:
- A.B. Ilibassi Realty Co. v. Lieberman
- Issues/Legal Principles:
- Landlord is allowed to amend the petition where pleading defects are of an amendable
nature.
- Keywords:
- petition; traverse
- Court:
- Civil Court, New York County
- Judge:
- Hon. Donna Mills
- Date:
- November 19, 1997
- Citation:
- NYLJ, page 29, col 1
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover against the rent controlled tenant on grounds that the
apartment was not her primary residence. Tenant made a motion claiming, inter alia, that the
landlord failed to properly identify itself in the petition, that the petition was not officially dated,
and that the petition does not identify the landlord's place of business. She further claimed that
service of the petition was improper. The court held that pleadings are to be liberally construed
and these types of errors will not result in a dismissal of the petition. The court held that the
issues tenant raised are amendable defects. The court further held that unless an affidavit by the
tenant denies receipt of the papers, the process server's affidavit of service is sufficient.
- Case Caption:
- Honig v. Nixon
- Issues/Legal Principles:
- Landlord cannot sue tenant for same rent twice.
- Keywords:
- res judicata; attorneys fees
- Court:
- Civil Court, New York County
- Judge:
- Hon. Saralee Evans
- Date:
- November 20, 1997
- Citation:
- NYLJ, page 29, col 3
- Referred Statutes:
- CPLR 3212 & 3215
- Summary:
- Plaintiff/landlord had previously sued defendant/tenant in a summary proceeding for rent
owed from July, 1991 through June, 1992. The tenant defaulted and was evicted by a marshal.
Landlord then sued tenant in a plenary proceeding for rent owed for the same period and was
awarded a judgment of $11,300 on tenant's default. The money judgment was never entered
with the clerk of court. Over a year later landlord now brings another civil court action seeking
rent for the same period. Landlord argues in a summary judgment motion to the court that the
first plenary action was abandoned because over a year had elapsed and the money judgment was
never entered, so it doesn't count anymore. The tenant argued that landlord cannot sue twice
for the same sums (res judicata). The judge held that there was a decision on the merits, albeit
at an inquest, and that the prior judge's decision should not be disregarded just because the
landlord abandoned the case by neglecting to enter or collect on the decision's judgment. The
court dismissed the complaint with prejudice. The court further denied the tenant attorney's fees
without prejudice to renew the request if tenant can produce a copy of the lease bearing an
attorney's fees clause.
- Case Caption:
- EGA Associates v. Ziegler & Freaso
- Issues/Legal Principles:
- Undertenant not entitled to any tenancy rights after prime tenant surrenders apartment
and after stipulation which gave undertenant a lease was vacated.
- Keywords:
- stipulations; rent stabilized status
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Strauss
- Date:
- November 20, 1997
- Citation:
- NYLJ, page 28, col 3
- Referred Statutes:
- none cited
- Summary:
- The Appellate Term reversed the lower court's finding that the undertenant be accorded
rent stabilized status "by operation of law and the intent of the petitioner." After the former rent
controlled tenant of record surrendered the apartment, the undertenant signed a stipulation
granting him an initial five-year lease not subject to regulation. It was further agreed that in the
event the stipulation and tenancy were set aside, the matter would be restored to the calendar
for the entry of a money judgment and a possessory judgment. The stipulation was later set
aside in a subsequent nonpayment proceeding, and the parties were restored to their former
status. The former status of the undertenant was that he had no rights once the prime tenant
surrendered. Since the stipulation was vacated, the undertenant had no rights and was subject
to eviction.
New York Law Journal, decisions for the week of November 10-14, 1997 (8 cases)
- Case Caption:
- Matter of Paulsen Real Estate Corp. v. Robert Grammick
- Issues/Legal Principles:
- Where lease contains a no waiver clause, landlord's acceptance of rent with knowledge of lease violation does not prevent landlord from maintaining an eviction proceeding.
- Keywords:
- Waiver; lease violation; pets
- Court:
- Appellate Division, Second Department
- Judge:
- lower court judge: Hon. Phelan
- Date:
- November 10, 1997
- Citation:
- NYLJ, page 31 , col 4
- Referred Statutes:
- None cited
- Summary:
- The tenant occupies an apartment pursuant to a lease which prohibits pets. Tenant allegedly keeps a dog in his apartment, in violation of the lease. The lease also provides that the landlord's acceptance of rent with knowledge of any violation of the lease does not constitute a waiver of such violation and the lease further provides that the landlord may waive a violation only by entering into a written agreement with tenant. Landlord accepted the rent from the tenant with knowledge that tenant was keeping a dog. Landlord brought a holdover (eviction) proceeding against the tenant for harboring the dog in violation of the lease. The tenant made a motion before the court asking that the holdover proceeding be dismissed because the landlord's acceptance of his rent, with knowledge of the lease violation, constituted a waiver of the lease violation. The District Court of Nassau County (the lower court) denied the tenant's motion, finding that the no-waiver clause in the lease protected the landlord from waiving its rights by accepting rent. The Appellate Division, Second Department reinstated the lower court's decision, noting that although in some cases the landlord's acceptance of rent will constitute waiver of a lease violation, such a waiver will not be found in a case where the lease expressly provides that acceptance of rent will not constitute a waiver.
- Case Caption:
- Sanchez v. Vierra
- Issues/Legal Principles:
- A notice to terminate a Section 8 tenant must specify the legal grounds.
- Keywords:
- Section 8; termination notice
- Court:
- Appellate Term, 2 & 11th Judicial District
- Judge:
- lower court: Hon. Callender
- Date:
- November 12, 1997
- Citation:
- NYLJ, page 29, col 5
- Referred Statutes:
- RPAPL 741(2); 24 CFR 982.309(b)
- Summary:
- The petition was dismissed by the lower court and upheld on appeal because the
landlord's petition failed to set forth the term (duration) of the tenancy. Since this was a Section
8 tenancy which can only be terminated upon specified grounds, landlords were required to set
forth the legal basis for terminating the tenancy; a mere thirty day notice was insufficient.
- Case Caption:
- NLI/Lutz, LLC v. NLI/Lutz, LLC et. al.
- Issues/Legal Principles:
- Court refuses to evict tenants, because they may be entitled to protection of the Loft Law and should be given an opportunity to present their claim to the Loft Board.
- Keywords:
- Receiver; Ejectment Action; Loft Law
- Court:
- Supreme Court, New York County
- Judge:
- Hon. David Saxe
- Date:
- November 12, 1997
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- MDL Section 280 (the "Loft Law")
- Summary:
- The premises which is the subject of this proceeding is in the control of a Receiver, who was appointed by the Supreme Court in the context of a mortgage foreclosure proceeding. The Receiver's role is to be the landlord of the building until the foreclosure proceeding is concluded and the Court issues an order discharging the Receiver. In this case, the Receiver brought a motion before the Court seeking to terminate the tenancy rights of a number of tenants and, on June 11, 1996, the Court granted the motion and issued an order of ejectment. Various tenants then made a motion to the Court to vacate the order of ejectment.
The Court refused to vacate the Order against tenants Tate and McCoy. The Court found that they were in default, that is, they failed to file an answer in response to the Receiver's motion and their excuse - that their former attorney did not advise them properly - was not valid. The court refused to vacate the order against Tate and McCoy, even though the Receiver's motion papers did not name them personally, was not personally served upon them and did not specify that the Receiver sought to oust these particular occupants.
However, the Court vacated the order of ejectment and warrant of eviction against tenants Shorr, Hunte and Aslan. These tenants persuaded the Court that they may be entitled to the protection of the Loft Law and, if so, they would be entitled to remain in their units. Although the Supreme Court has jurisdiction over their claim of entitlement to Loft Law protection, the Judge decided that the tenants' claim would be "best left to the appropriate administrative agency," that is, the Loft Board. Until the Loft Board decides their claim, the tenants could remain in occupancy so long as they continue to pay monthly use and occupancy to the Receiver.
- Case Caption:
- Citibank, N.A. v. Mendelsohn
- Issues/Legal Principles:
- Affixing the petition and notice of petition to the building's entrance door does not constitute proper service of a tenant residing in a third floor apartment.
- Keywords:
- Service of process; reasonable application; substituted service
- Court:
- Civil Court, New York County
- Judge:
- Hon. Peter Wendt
- Date:
- November 12, 1997
- Citation:
- NYLJ, page 30, col 3
- Referred Statutes:
- RPAPL Section 735(1); CPLR Section 308(7)
- Summary:
- The landlord (Citibank) brought a holdover (eviction) proceeding against the tenants, the tenants failed to appear and the Court, after holding an inquest proceeding, granted possession to the landlord. Then, the tenants became aware of this proceeding, for the first time, when they found a 72 hour eviction notice directed against them in the building's garbage can. The tenants made a motion asking the Court to vacate the default judgment on the ground that they were not properly served with the notice of petition and petition.
The Court conducted a traverse hearing, that is, a hearing to determine whether the tenants had been served in accordance with the requirements of the relevant statute, RPAPL Section 735. RPAPL Section 735(1) provides that if a process server makes reasonable application but cannot personally deliver the notice of petition and petition to the respondent or a personal of suitable age and discretion, then the process server may affix "a copy of the notice of petition and petition upon a conspicuous part of the property sought to be recovered. . . ." The process server testified that he affixed the notice of petition and petition to the entrance door of the building, rather than to the entrance door of the tenant's apartment on the third floor. The Court granted the tenants' motion to vacate the default judgment, and dismissed the landlord's eviction proceeding, because service was improper for two reasons. First, the process server should have made "reasonable attempts" to personally deliver the papers to the tenants before resorting to a form of substituted service, such as affixing the papers on the door. Second, even if the process server had made reasonable attempts which were not successful, he should have affixed the papers on the door of the premises sought to be recovered (the entrance door to the third floor apartment) rather than the entrance door to the building. The Court noted that since Citibank owned the entire building, not just this condominium apartment, Citibank's process server could have obtained access through the front door of the building, and then to the tenants' apartment, simply by making arrangements with one of its employees at the building.
- Case Caption:
- Taylor v. Singletary
- Issues/Legal Principles:
- A notary has the obligation to make certain that the person who signs a document in front of them is actually the person whose name is being signed.
- Keywords:
- Notaries
- Court:
- Civil Court, Kings County
- Judge:
- Hon. Callendar
- Date:
- November 12, 1997
- Citation:
- NYLJ, page 30, col 5
- Referred Statutes:
- MDL Section 325; CPLR Section 3021; RPAPL Sections 721 and 741; Executive Law Section 135-a; 51 RCNY Section 2-08; Part 130 of the Uniform Rules of the Trial Courts
- Summary:
- The Court dismissed the landlord's nonpayment proceeding because the landlord failed to prove ownership and a landlord-tenant relationship with the respondent. In addition, although the premises is a four-family house and therefore a multiple dwelling, the landlord failed to prove that the premises was registered as a multiple dwelling with the Department of Housing, Preservation and Development ("DHPD").
Due to the improper conduct of the notary who witnessed the signature on the holdover petition, the Court referred this matter to the District Attorney and the Secretary of State of the State of New York. In this case, the notary knew that the signature on the petition was not that of the petitioner-landlord, but the petitioner's brother. He witnessed the signature anyway, which is not only improper but a criminal offense. A notary is required to ask a signatory to provide identification in order to determine that the person appearing before them is the person whose name is being signed.
- Case Caption:
- ATM Four LLC v. Rodriguez
- Issues/Legal Principles:
- If conditions in the leased premises breach the warranty of habitability, tenant may be entitled to a rent abatement and tenant's attorney may be entitled to an award of attorney's fees.
- Keywords:
- warranty of habitability; rent abatement; attorney's fees
- Court:
- District Court, Nassau County
- Judge:
- Hon. Bergstein
- Date:
- November 12, 1997
- Citation:
- NYLJ, page 31, col 1
- Referred Statutes:
- RPL Section 234
- Summary:
- The landlord brought a proceeding for nonpayment of one month's rent and legal fees in the amount of $400.00; the tenants counterclaimed that they were entitled to a rent abatement and to attorney's fees in the amount of $400.00. After trial, the Court found that the bathroom displayed water stains, cracks and leakage; the window locks were rusted and inoperative; and the apartment was roach, rodent and vermin infested. The Court found that these conditions constituted a breach of the warranty of habitability and entitled the tenants to a rent abatement of $90.00 per month for 13 months, for a total of $1,170.00, and awarded legal fees in the amount of $400.00 to the tenant's attorney. The Court issued judgment to the tenants in an amount which included the rent abatement, the return of a security and key deposit, and attorney's fees in accordance with RPL Section 234.
- Case Caption:
- Park West Village Associates v. Ambroise
- Issues/Legal Principles:
- Tenant's attorney is awarded attorney's fees for the hours spent in proving entitlement to attorney's fees at a hearing and for the successful prosecution of the ensuing appeal.
- Keywords:
- attorney's fees; fees on fees
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Eardell J. Rashford
- Date:
- November 14, 1997
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- RPL Section 234
- Summary:
- Tenant's attorney successfully defended tenant against a nuisance holdover proceeding and requested an award of fees in the amount of $225.00 per hour for 5.8 hours of work. Landlord would not consent and tenant's attorney therefore was required to prove entitlement to fees at a hearing. After hearing, the trial court awarded the amount requested to tenant's attorney. The trial court refused to award the tenant's attorney a "fee on a fee." The appellate court held that the case should be remanded (sent back) to the trial court for a determination of the amount of fees which should be awarded to the tenant's attorney for proving entitlement to fees before both the trial and appellate courts.
- Case Caption:
- Plon Realty Corp v. D'Abbracci
- Issues/Legal Principles:
- By accepting rent checks directly from subtenant, landlord did not recognize subtenant as a tenant in her own right.
- Keywords:
- Waiver; creation of landlord-tenant relationship
- Court:
- Appellate Term, First Department
- Judge:
- lower court judge: Hon. Judith J. Gische
- Date:
- November 14, 1997
- Citation:
- NYLJ, page 25, col 4
- Referred Statutes:
- None cited
- Summary:
- Landlord brought a holdover (eviction) proceeding against D'Abbracci, the subtenant of the tenant of record. The tenant of record had previously surrendered legal possession to the landlord. In defense, the subtenant claimed that the landlord's predecessor had accepted rent checks directly from the subtenant and that by accepting these checks, the landlord consented to the subtenant as a tenant in her own right. The trial court agreed with the tenant but the appellate court reversed, stating that "a tenancy may not generally be created by waiver or estoppel." At most, the acceptance of the rent checks from the subtenant was an expression of the landlord's consent to the continuation of the subtenancy. The appellate court granted the landlord's holdover petition against the subtenant.
New York Law Journal, decisions for the week of November 3-7, 1997 (9 cases)
- Case Caption:
- Stern v. Levanthal
- Issues/Legal Principles:
- Where wife is not a party to the lease, landlord must first sue husband for rent arrears, and only
if he has insufficient funds can landlord then attempt to collect from her.
-
Keywords:
- rent arrears; spouses
- Court:
- Appellate Term, 2 & 11th Judicial District
- Judge:
- lower court: Hon. Resnik
- Date:
- November 4, 1997
- Citation:
- NYLJ, page 33, col 2
- Referred Statutes:
- General Obligations Law 3-305
- Summary:
- The Appellate Term reversed the lower court's monetary judgment in favor of the plaintiff-landlord in a civil action for rental arrears againt the former tenants, a husband and wife. The
defendant-tenants had failed to show up for trial, and argued that their counsel had withdrawn from
the case on the eve of trial and they were unaware of the formalities in obtaining an adjournment.
The Appellate Term accepted this ground as a reasonable excuse and viewed their allegation of rat
infestation as a meritorious defense (the two criteria necessary to vacate a default judgment). The
Court furthermore held that the landlord could not bring an action against the wife who was not a
party to the lease. The landlord must first pursue the husband and only if he has insufficient funds
may the landlord then look to the wife for recovery.
- Case Caption:
- Whitman Village Housing Development Corp. v. Lewis
- Issues/Legal Principles:
- .Co-resident's arrest and guilty plea for drug possession "on or near" the building is too vague;
trial needed to determine if violation of lease clause prohibiting criminal activity in premises was
triggered by co-resident's actions.
- Keywords:
- nuisance; criminal activity
- Court:
- Appellate Term, 2nd & 11th Judicial District
- Judge:
- lower court: Hon. R. Costello
- Date:
- November 4, 1997
- Citation:
- NYLJ, page 33, col 2
- Referred Statutes:
- none cited
- Summary:
- Tenant residing in a HUD subsidized apartment had an occupancy agreement which prohibited
drug activity in the premises. Landlord brought a holdover proceeding against the tenant for
violation of this particular clause. In seeking to win a summary judgment, the landlord attached as
an exhibit a copy of the transcript of the Criminal Court plea entered into by tenant's husband, a co-resident. The husband admitted that "on or near" the landlord's building he possessed a quantity of
cocaine and pled guilty to the offense. To the landlord that was proof positive that the tenant should
be evicted. The lower court and the Appellate Term disagreed, holding that the term "on or near"
the building was too vague to charge the tenant with violating the lease on alleged drug possession
grounds and directed a trial on the facts in dispute.
- Case Caption:
- 4-14 Mulford Place, Inc. V. DiGeronimo
- Issues/Legal Principles:
- .Littigation of tenants' alleged refusal to give landlord a set of keys should be heard in housing
court, not Supreme Court.
- Keywords:
-
- Court:
- Appellate Term, 2nd & 11th Judicial District
- Judge:
- lower court: Hon. F. Grella
- Date:
- November 4, 1997
- Citation:
- NYLJ, page 33, col 4
- Referred Statutes:
- none cited
- Summary:
- Landlord began a holdover against the tenants on grounds that they breached the lease by failing
to provide the landlord with a set of keys to the apartment. Two prior cases were dismissed on
technical grounds. One day before landlord commenced its third holdover proceeding, the tenants
brought a Supreme Court action concerning the keys issue. The tenants moved to stay the landlord
from pursuing the third holdover proceeding. The Supreme Court granted the tenants' motion, but
the appellate court reversed on grounds that "a summary proceeding should be stayed only when the
lower court is without the authority to grant the relief sought." Since the keys issue was an issue that
the lower court was empowered to address, the appellate court held that the lower court "abused its
discretion in staying the summary proceeding."
- Case Caption:
- Matter of Vahab v. NYS DHCR
- Issues/Legal Principles:
- DHCR decision reversed where the agency irrationally deregulated tenant's Rent Stabilized
apartment on grounds of luxury decontrol despite information made known to the agency that
tenant's income for the 1993 year was less than $250,000.
- Keywords:
- luxury deregulation
- Court:
- Supreme Court, New York County
- Judge:
- Hon. Gans
- Date:
- November 5, 1997
- Citation:
- NYLJ, page 26, col 2
- Referred Statutes:
- RSL 26-504.3
- Summary:
- In February, 1994, landlord initiated a high income rent deregulation proceeding by sending
the tenant an Income Certification Form seeking income information for the preceding two years,
1992 and 1993. The tenant filled it out stating that his income for the preceding two years was less
than $250,000 and sent it to the landlord. In April, 1994, the owner filed with the DHCR a petition
to deregulate the apartment based on tenant's high rent in 1992 and 1993. Apparently, the tenant
never received a form mailed to him by the DHCR to respond to the landlord's petition and present
evidence of income verification which would have disproved his alleged high income status. As a
result, the DHCR granted the landlord's petition and issued an order deregulating the apartment. The
tenant received the DHCR order and filed a PAR (appeal). The agency then sent the tenant for a
second time the forms needed to respond and again sought income verification for 1992 and 1993.
Receiving no response from the tenant, the DHCR upheld its initial order and deregulated the
apartment. Where a tenant does not respond to the proceedings, the law creates a presumption that
the tenant's income exceeds $250,00 for the preceeding two years prior to the year the landlord files
a petition. The agency's deregulation order pertained to tenant's income for the years 1992 and
1993. While the proceedings were pending-but before the DHCR issued its order upholding the
decision to deregulate the apartment-the owner filed a second petition to deregulate the apartment
in 1995, which entails an examination of tenant's income for the years 1993 and 1994. The luxury
deregulation law permits a landlord to seek income verification every year and each separate petition
is given a different docket number by the DHCR. The tenant filed an answer to this second petition
with the DHCR and provided income verification showing that in the years 1993 and 1994 he earned
less than $250,000 a year. The DHCR denied landlord's second petition to deregulate the apartment
based on the fact that the tenant's income for the years 1993 and 1994 did not exceed $250,000. At
issue in this case is tenant's Article 78 petition appealing the DHCR decision involving the
landlord's first petition to deregulate his apartment. As noted, the deregulation order ensued solely
because the agency received no income verification for the 1992 and 1993 calendar years, and thus
presumed that the tenant's income for those years exceeded $250,000. The court, however, declared
DHCR's decision to be arbitrary and lacking a rational basis. Tenant had submitted verification for
1993 and 1994 on landlord's second petition for deregulation. Landlord's papers submitted in the
second petition made reference to the first petition, the pending PAR in that matter, and the fact that
the first petition also involved the year 1993 (and 1992). Thus, how could DHCR on the one hand
deny landlord's second petition because tenant's income was not high enough in 1993 (and 1994),
but grant the landlord's first petition even though it also involved 1993 income (and 1994)? The
contradiction was glaring to the court. The court held that DHCR should not have just automatically
presumed tenant's income exceeded $250,000 in the first petition simply because the tenant did not
submit an answer. During the second petition, DHCR should have investigated the facts made
known to it (i.e., that another petition was pending), and it would have become obvious that both
petitions involved tenant's 1993 income. The court remanded the first petition back to the DHCR
for a hearing concerning tenant's rent for the years 1992 and 1993.
- Notes:
- This tenant was saved from a deregulation because the landlord had made two petitions for
income verification which happened to overlap for 1993. What if a second petition had not been
submitted making reference to the first petition? The judge would then have been unable to charge
DHCR with knowledge of the 1993 income. The judge would have been forced to decide against
the tenant because the tenant failed to supply income verification: the statute creates a presumption
that if the tenant does not respond then it is assumed the tenant's income exceeds the statutory limit.
The extent of landlord's political muscle is evident here, because the law could have been written
to provide that DHCR could not make any such presumptions, that DHCR should be required to send
tenant a certified letter seeking income verification, or any number of means to communicate with
the tenant. Reliance solely on regular mail when the stakes are so high is frightening. This case does
not explain why the tenant did not respond to DHCR's second request for income verification. One
can infer that he didn't receive the second request either. The case shows that the tenant responded
timely to the second petition; it doesn't make sense that he would thus ignore the first petition
request for information. The new 1997 amendment to the luxury deregulation law lowered the
income level from $250,000 to $175,000, thereby expanding the number of apartments subject to
deregulation.
- Case Caption:
- GCM Corp. v. Johnson
- Issues/Legal Principles:
- Despite foreclosure of building and tenant's non-payment of rent, tenant remains a rent
stabilized tenant.
- Keywords:
- foreclosure; collateral estoppel
- Court:
- Civil Housing Court, Kings County
- Judge:
- Hon. Ronni Birnbaum
- Date:
- November 5, 1997
- Citation:
- NYLJ, page 31, col 3
- Referred Statutes:
- none cited
- Summary:
- Landlord brought a holdover against a tenant claiming that he was a mere licensee, while the
tenant asserted that he is a rent stabilized tenant. Prior to a foreclosure the tenant was indeed rent
stabilized. The landlord tried to argue that during the foreclosure proceeding the tenant never raised
his stabilization status, and was therefore now precluded from doing so in Housing Court. The court
held that since the tenant's status was not an issue pertinent to or raised during the foreclosure
proceeding, the tenant was not collaterally estopped (i.e., prevented) from raising this as a defense
in the landlord's licensee holdover proceeding. The landlord also argued that the tenant lost his
stabilization rights because he didn't pay his rent. This is a bizarre argument, and the court rightly
rejected it; non-payment of rent is not a statutory ground on which a tenant may lose stabilized
protections.
- Case Caption:
- Blackjack Realty Corp. v. DeLaRosa
- Issues/Legal Principles:
- 16 petitions served within one-minute intervals is not proper service; Tenant allowed to deposit
rent into court where landlord was on notice of rent impairing violations and did not repair them
within six months.
- Keywords:
- traverse; rent deposits
- Court:
- Civil Housing Court: New York County
- Judge:
- Hon. Ling-Cohan
- Date:
- November 5, 1997
- Citation:
- NYLJ, page 28, col 4
- Referred Statutes:
- RPAPL 711(2); RPAPL 741; Multiple Dwelling Law 302-a
- Summary:
- Eighteen tenants went on rent strike and the court was presented with their motions to (a)
consolidate all their cases, (b) dismiss the cases for lack of service of the papers or improper service,
and (c) seeking permission to deposit the undisputed rents with the court. 16 of the rent demands
were served by conspicuous place service (i.e., left on the door or under the door and copies mailed
by regular and certified mailings). The process server's affidavit alleges that the 16 tenants were
served in one-minute intervals. In other words, tenant A was served at 9:28 am, tenant B at 9:29 am,
tenant C at 9:30 am, and so on. The process server's affidavit further claimed that 12 of the petitions
were also served in one-minute intervals. The tenants assert that service of process in one-minute
intervals is invalid as a matter of law. The process server claimed that several apartments are on
each floor and that by knocking on each door and standing in one place he could see if anyone
responded to his knocks, and lacking responses he made service on all apartments on one floor and
then went to another floor and did the same procedure. The tenants, however, stated that the
hallways are U-shaped and there is no spot where one can stand and view all apartments
simultaneously. The court ruled that service was improper, observing that it is entirely possible that
a tenant, upon hearing a knock, would look through the peephole, and seeing no one there since
the process server was standing in the middle of the hallway would reasonably not open their door.
Therefore, the procedure utilized did not constitute a reasonable application at service and the 16
petitions were dismissed. A 17th petition was dismissed for similar reasons. The court denied the
request to consolidate the cases since there was nothing left to consolidate for the 18th tenant. This
tenant sought to deposit her rent into court because rent impairing violations existed on city records,
and notice of the violations was mailed to the owner. Multiple Dwelling Law 302-a provides that
where rent impairing violations exist and the owner fails to correct themwithin 6 months after notice,
no rent can be recovered by the owner after the 6 month period. The court thus permitted the tenant
to deposit the rent with the court pending the outcome of the litigation.
- Case Caption:
- France v. Stahl Associates
- Issues/Legal Principles:
- Tenant who caused violations cannot recover attorney's fees.
- Keywords:
- attorney's fees; violations
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Peter Wendt
- Date:
- November 7, 1997
- Citation:
- NYLJ, page 25, col 1
- Referred Statutes:
- none cited
- Summary:
- In an HP proceeding the lower court ordered landlord to correct violations of record by
restoring the apartment to a habitable condition, notwithstanding that the tenant may have been
responsible for the inhabitability of the apartment. The Appellate Term upheld on this issue, but
reversed the lower court's award to the tenant of attorney's fees. The dissent held that the evidence
clearly showed that the super demolished the apartment at the direction of the tenant who is an
architect and interior designer. The demolishment was done so that the tenant could then renovate
the apartment in connection with his HP action for roof leaks. The demolishment occurred two years
ago, but only now did the tenant raise it as an issue in an HP proceeding to compel landlord to
correct violations on the roof. The dissent held that in such circumstances, the tenant was
responsible for the demolition and should be responsible for restoring the apartment to its original
configuration.
- Case Caption:
- Stahl Associates v. France
- Issues/Legal Principles:
- Tenant's alleged contribution to violations must be considered by the court in determining an
abatement for a breach of the warranty of habitability.
- Keywords:
- warranty of habitability
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Margaret Taylor
- Date:
- November 7, 1997
- Citation:
- NYLJ, page 25, col 3
- Referred Statutes:
- RPL 235-b
- Summary:
- This non-payment proceeding is a companion case to the HP proceeding cited above. Tenant
withheld rent and sought an abatement for breach of thewarranty of habitability. The lower court
granted tenant the abatement based on the HP court's determination that the apartment was
unhabitable. The HP court, however, never took into consideration the issue of whether the tenant
caused the damage when it rendered its determination that the landlord must make the apartment
habitable. In fact, the HP judge refused the tenant's suggestion to incorporate in the court's written
findings that the tenant was not liable for the damage. Thus, the Appellate Term held that the lower
court in the non-payment proceeding should have taken into account the tenant's "misconduct" in
determining whether to award an abatement. It therefore reversed the abatement and attorney's fees
awarded to tenant and remanded the case for a new trial.
- Case Caption:
- H&H Equities v. Baez
- Issues/Legal Principles:
- Tenant's expert determined that apartment contained hazardous levels of lead paint.
- Keywords:
- lead paint
- Court:
- Appellate Term, First Department
- Judge:
- lower court: Hon. Pierre Turner
- Date:
- November 7, 1997
- Citation:
- NYLJ, page 25, col 5
- Referred Statutes:
- Administrative Code 2013(h)
- Summary:
- In a non-payment proceeding, the tenant sought an inspection to determine if a lead paint
hazard existed in the apartment she shared with her child. At a hearing the parties presented
conflicting expert opinion testimony and divergent scientific test results on the lead hazard issue.
The court credited the testimony of tenant's expert over that of landlord's expert. Based on the
tenant's expert's testimony the court found that lead paint was present in the apartment in amounts
exceeding the law. The landlord appealed, but the Appellate Term affirmed the lower court's
decision as rationally based.
- Notes:
- This case is useful for anyone desiring information concerning the various methods employed
to determine the presence of lead paint. Apparently, there are several scientific ways to examine the
issue, and the experts disagree on which is more effective. This case explored in some detail the
varying methods.
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